Zoning codes are constantly evolving in response to perceived or real threats of overdevelopment.  Generally, a municipality may in the reasonable exercise of its police power, amend its zoning code to be more restrictive in the bulk area requirements required for development of a parcel.  Known as a “merger provision” when a landowner purchases an adjacent substandard parcel of land, the lots merge with the existing property by operation of the local zoning ordinance.

The “single and separate” doctrine, however, may provide exemptions from subsequent more restrictive zoning ordinances.  Sometimes referred to as “checker boarding,” a landowner who owns property “single and separate” from another adjacent parcel may be able to preserve a developable lot despite a zoning code amendment prohibiting such development. But this is only if the municipality wants to extend such an exemption.

As stated by the Court of Appeals in Matter of Khan v Zoning Board of Appeals of Vil. of Irvington. 87 NY2d 344[1996], “there is no need for a common-law rule to protect landowners who possess parcels in ‘single and separate’ ownership situations,” and the Court of Appeals has declined to adopt such a rule.  The Court concluded that since the landowner’s property rights are protected by the availability of area variances, there is no need to overrule the municipality’s legislative zoning authority by creating a common-law right that automatically vests property owners with an exemption from area variances.

As a result, a municipality may provide this relief to exempt the owners of substandard parcels by creating a zoning exemption for properties that are held in single and separate ownership.  These exemptions are part of most zoning codes and serve an important purpose.  As  stated by the Court of Appeals in DeTroia v Schweitzer, 87 NY 2d 338 [1996], the purpose of a single and separate ownership exemption clause to a zoning code is to protect long-term property owners from amendments that render their previously conforming property useless, and thus preventing the more restrictive zoning ordinance from having a possible unconstitutional confiscatory effect.

Case law also clearly holds that commonly owned parcels will merge and not be considered “single and separate” for zoning purposes if: (1) they were used in conjunction with each other and (2) materially enhance the value and utility of each other.  Matter of Barretto v Zoning Board of Appeals of Inc. Vil. Bayville, 1234 AD2d 692 [2 Dept 1986].

This is why savvy property owners keep properties in separate ownership.

 

Last week, in The Seaview at Amagansett, Ltd. v. Town of East Hampton Justice Paul J. Baisely, Jr. found the Town of East Hampton and several of its officials in civil and criminal contempt of the Appellate Division, Second Department’s 2021 decision that restricted access to a 4,000-foot long area of oceanfront property commonly known as “Truck Beach”  in Napeague, New York.  The court did not consolidate fourteen actions relating to criminal trespass summons by local fishermen in connection with a staged protest.

The dispute in this litigation arises out of ownership and use of an area of private beach that was traditionally used by local baymen to fish when this area of waterfront was sparsely populated.  More specifically, the case deals with disputed area of beach landward of the mean high-water mark of the Atlantic Ocean that was conveyed in 1882 by the Town Trustees to Arthur W. Benson (the “Benson Deed”) and hinges on a reservation of rights in the deed.  This deed contains an easement “reserved to the inhabitants of the Town of East Hampton the right to land fish boats and netts to spread the nets on the adjacent sand and care for the fish and materials as has been customary heretofore on the South Shore of the Town lying westerly of these conveyed premises.”

By the mid 2000’s Truck Beach was used less for fishing and more for local day trippers to the frustration of the summer homeowners along this area of contested beach front.  In 2009, the waterfront homeowners began a contentious legal battle to quiet title on Truck Beach once and for all.

In February 2021, the Second Department found that the disputed beach area was held by the waterfront homeowners association (HOA) in fee simple absolute and did not confer upon the Town any regulatory power to issue permits allowing members of the public to operate and park vehicles on any portion of the beach owned by HOA.  The decision went further and enjoined the Town from issuing permits to allow driving on Truck Beach.

Between February and September 2021, the Town issued 4,016 resident beach driving permits and 111 nonresidential permits for Truck Beach and did not inform any of the permits holders that driving on Truck Beach was prohibited.  On May 28, 2021, the Town installed signs permitting vehicle access to Truck Beach but limited it to “fishing and fishing-related purposes.”

In April 2021, the HOA moved for an order holding the Town in civil contempt for violating the appellate court decision. On January 26, 27 and February 10, 2022 a contempt hearing was conducted in Suffolk Supreme, before Justice Baisely.

As a result of the hearing, the court held that limiting vehicular access to “fishing and fishing-related purposes” was inconsistent with the plain language of the Appellate Division decision.  Justice Baisely found the Town in civil and criminal contempt for demonstrating an “appallingly studied indifference and deliberate disobedience of the lawful and unequivocal order of this court and the Appellate Division” and order the Town to pay the HOA $239,000.00 and directed the Town Clerk to revoke all permits issued by the Town since February 3, 2021.

The Town of East Hampton has appealed the decision to the Appellate Division.

 

When New York Governor Kathy Hochul executed the 2022-2023 State Budget, it included a 10-year extension to the State’s Brownfield Cleanup Program (“BCP” or “Program).  The State’s voluntary, incentive-laced, BCP was set to expire on December 31, 2022.  The Program’s extension generally reinforces the State’s commitment to incentivize the remediation and re-use of environmentally-compromised and economically-blighted property.

Applicants can now be accepted into the BCP through December 31, 2032 and be eligible to receive tax-credit benefits if a Certificate of Completion (“COC”), confirming the remedial action objectives for the BCP site have been achieved, is issued on or before December 31, 2036.

In addition to extending the BCP, the Budget included a number of amendments that serve to extend and/or expand and increase the availability of BCP tax credits.  Specifically, the amendments include:

  • A 2-year extension to claim site preparation credits and/or on-site groundwater remediation credits for sites that received a COC between July 1, 2015 and June 24, 2021. The timeframe for claiming the credits was previously 5 tax years from the issuance of a COC, the Budget amends the timeframe to 7 tax years.
  • An extension to the timeframe for sites that received a COC between March 20, 2010 and December 31, 2015 to claim qualified tangible property tax credits (improvement/development costs) to 180 months (15 years) from the issuance of a COC.  Previously, the claims were available for a period of 10 years, with an additional 2-year allowance if it was determined the requirements for the credit would have been met, if not for COVID restrictions.
  • The addition of a 5% increase in available qualified tangible property credits for sites developed as renewable energy facilities or for sites developed in a “disadvantaged community” within a Brownfield Opportunity Area. Qualified tangible property credits can range from 10% to 24% of development costs (subject to certain credit amount caps) based on a number of qualifying factors, including the level of cleanup, and if the project is located within an Environmental Zone or Brownfield Opportunity Area.
  • Expansion of eligibility for qualified tangible property credits to sites located in New York City for renewable energy facilities and sites characterized as a “disadvantaged community” located within a Brownfield Opportunity Area. Prior to the amendment, qualified tangible property credits in NYC were only available to sites that demonstrated (a) at least half of the site is located in an Environmental Zone, (b) the property is upside down or underutilized, or (c) the project is an Affordable Housing Project.
  • Inclusion of stadiums, baseball parks, basketball courts and other athletic facilities and equipment, including sports field turf, lighting and access and entry ways, among other improvements, as qualified tangible property for sites cleaned up to a Track 1 remediation standard beginning in tax year 2022.

In contrast to the expansion and extensions to obtain BCP incentives, the amendments also potentially curtail eligibility of certain benefits for Affordable Housing projects and incorporate a pay-to-play component for projects admitted into the BCP:

  • The amendments modified the definition of Affordable Housing Project to include language authorizing Department of Environmental Conservation (“DEC”), after consultation with the Division of Housing and Community Renewal, to exclude specific benefits.
  • The amendments introduce a non-refundable program fee of $50,000 payable upon admittance into the BCP. The fee is waivable upon a showing of financial hardship.  The fee does not qualify for any of the BCP tax credits.  The amendments require the DEC to establish regulations defining a financial hardship.  The amendments establish the preliminary criteria  for evaluating financial hardship as (a) considering whether an applicant has waived its tax-credit benefit rights, (b) determining if the project is located in a disadvantaged community or if the site is being developed as an Affordable Housing Project, and (c) reveiwing the assets and income of the applicant.

 The amendments achieve the goal of extending the BCP and expanding and/or extending the incentives associated with the BCP.  However, imposing flat, non-refundable fees on all applicants would seemingly curb lower-margin projects, smaller projects and projects located in less dense population areas.

For more information regarding the BCP, please contact Jesse Hiney (631.367.0718).

 

As part of the 2022 adopted State Budget, the New York State Legislature amended the Open Meetings Law (Public Officers Law § 100, et seq.) to authorize public bodies to conduct meetings using videoconference technology through June 30, 2024.  Videoconferencing was commonly used by public bodies during the pandemic because the public was prohibited from attending government meetings in person.  The new law allows for the continued use of videoconferencing when conducting public meetings, but this authorization is subject to much stricter requirements.

For purposes of the Open Meetings Law, a “meeting” is the official convening of a public body for the purpose of discussing public business.  Whenever a quorum of a public body gathers for the purpose of conducting public business, the Open Meetings Law requires that the meeting be noticed and the public allowed to attend and observe the meeting in person, except for a portion of the meeting that is in executive session.  Section 103(c) of the Public Officers Law previously authorized a public body to use videoconferencing to conduct its meetings, but only if the public was permitted to attend, listen and observe the meeting at any remote location where videoconferencing was used.

New Requirements for the Use of Videoconferencing

As of April 9, 2022, public bodies wishing to conduct meetings by videoconference must comply with the new requirements set forth in Public Officers Law § 103-a.  A public body may use videoconferencing provided that the public can attend, listen, and observe the meeting in at least one physical location at which a member participates and a quorum of the members are present in either the same physical location or in multiple locations where the public is permitted to attend.  In addition, the following criteria must be met:

  • The local government must adopt a local law, or an individual public body must adopt a resolution, following a public hearing authorizing the use of videoconferencing for itself and its committees and subcommittees, or specifying that each committee or subcommittee can make its own determination.
  • The public body must adopt written procedures governing member and public attendance consistent with Public Officers Law § 103-a and post those procedures on the public body’s website.
  • Members of the public body must be physically present at one of the meeting locations where the public can attend in person unless the member is unable to be physically present due to extraordinary circumstances, as set forth in the public body’s adopted meeting procedures, such as disability, illness, caregiving responsibilities, or any other significant or unexpected factor or event which precludes the member’s physical attendance at such meeting. Members of a public body do not have a right to attend meetings remotely, but may participate remotely by videoconference only at the discretion of the public body.
  • The public body must ensure that members of the public body can be heard, seen, and identified while the meeting is being conducted, except in the case of executive sessions.
  • The minutes of meetings involving videoconferencing must include which, if any, members participated remotely and must be made available to the public.
  • The public notice for the meeting must inform the public that videoconferencing will be used, where they can view and/or participate in such meeting, where required documents and records will be posted or available, and identify the physical location(s) where members of the public body will be participating in the meeting and where the public can attend the meeting in person.
  • The public body must record each meeting that uses videoconferencing and such recordings must be posted or linked to the public body’s website within five business days of the meeting, kept for a minimum of five years thereafter, and recordings must be transcribed upon request.
  • The public body must provide the opportunity for members of the public to view the meeting by video. At meetings where public comment and participation is authorized, members of the public must be able to participate in the proceedings by videoconference in real time and with the same opportunities for participation and testimony as in-person participation and testimony.
  • A public body electing to utilize videoconferencing to conduct its meeting must maintain an official website.

Where public meetings are broadcast or use videoconferencing, the technology used must permit access by members of the public with disabilities in a manner consistent with the Americans with Disabilities Act.

Local Discretion During Emergencies

The new law includes an emergency exception to the in-person requirement associated with videoconference meetings if the Governor has declared a state of emergency or the local chief executive has declared a local state of emergency.  However, notwithstanding a State or local emergency declaration, the decision to waive the in-person meeting requirement is left to the discretion of the local public body after assessing whether the circumstances would affect or impair its ability to hold an in-person meeting.

Transition Period and Expiration

The legislation includes a 60-day transition period ending on June 8, 2022, during which a public body may continue to conduct meetings using the remote meeting procedure that was authorized during the pandemic by Executive Order 202.1 and Chapter 1 of the Laws of 2022.  The law contains a sunset provision stating that the new regulations will expire and be deemed repealed on July 1, 2024.  Prior to that date, the law requires that the Committee on Open Government issue a report to the Governor, the leaders of the Senate and Assembly and others, concerning the application and implementation of the law and any further recommendations governing the use of videoconferencing for public meetings.

 

While the use of videoconferencing to conduct public hearings is authorized by the Open Meetings Law, the rules for doing so are stricter than those put in place during the pandemic.  Accordingly, local governments and public bodies should consult with their municipal attorneys prior to allowing its members to participate in meetings remotely.  If you have questions about the new law, please contact Anthony S. Guardino (631.367.0716) or any member of the firm’s Land Use and Municipal practice group.

When requesting deviation from setback minimums or minimum lot size requirements, a developer must request an area variance. Even if the lots are zoned residential and the developer only wants to build a single-family residence, there is no guarantee that a Zoning Board of Appeals will allow deviations and grant an area variance, as in Matter of Stelling v. Gaudioso, 2022 NY Slip Op 02409, 2022 WL 1097243 (2d Dep’t 2022).

In Stelling, the petitioner wanted to subdivide the property into two separate lots. The first step in this process is to complete a minor subdivision application, which was submitted to the Village of Lake Grove Planning Board. However, the subject property requires a minimum lot size of 20,000 square feet, but the petitioner sought one lot to be only 6,000 square feet and the other to be 10,000 square feet. Therefore, the petitioner had to apply to the Lake Grove Zoning Board of Appeals (“ZBA”) for area variances. The ZBA denied the petitioner’s applications, and the petitioner commenced an article 78 proceeding to set aside the ZBA’s determination, which the Suffolk County Supreme Court in turn denied.

In affirming the Suffolk County Supreme Court’s decision, the Appellate Division, Second Department, held that the ZBA’s decision was rational. The court explained that when deciding whether to grant an area variance, “a zoning board of appeals is required to engage in a balancing test weighing the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community” Stelling p. 3, citing Matter of deBordenave v. Village of Tuxedo Park Bd. of Zoning Appeals, 92 N.Y.S.3d 132 (2d Dep’t 2019). In considering the benefits and drawbacks of an area variance, the code of the Village of Lake Grove specifies factors to consider:

(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created” (Village Law § 7-712-b[3][b]).

Though these factors must be considered by a local zoning board, courts will not disturb a determination unless an “action taken by the board was illegal, arbitrary, or an abuse of discretion” because zoning boards have wide discretion in deciding variance applications. Stelling, p. 3-4 (internal citations omitted). Further, a determination only must have some “objective factual basis” to be considered rational and not arbitrary and capricious. Stelling, p. 4.

In Stelling, the court held that the relevant factors were considered by the ZBA, and so the ZBA’s decision to deny the petitioner’s applications was rational and not arbitrary or capricious. The petitioner’s variances were substantial—specifically, the lot areas would have been 50% and 70% smaller than the zoning requirements. Further, the court found that there were feasible alternatives for the petitioner because one house could be constructed on the property instead of two.

The factors in balancing the interests of the community and applicant do not specifically put a limit on the size of an area variance that could be granted; the benefits and drawbacks to the community as a whole will be considered, as well as the feasibility of alternatives along with all of the aforementioned factors. However, it is helpful for developers to consider that the Stelling court considered lots 50% and 70% smaller than was allowed in the zoning code to be substantial.

The “Special Use Permit” is a zoning term and process used by a municipality to encourage, but still regulate, land use in a zoning district by making it subject to a special review and criteria detailed in the zoning ordinance.  See, Town Law Section 274-b, Village Law Section 7-725-b and City Law Section 27-b.

The “Special Use Permit” also known as “special permit,” “special exception” and “conditional use permit” is defined as:

“authorization of a particular land use which is permitted in a zoning ordinance or local law, subject to requirements imposed by such zoning ordinance or local law to assure that the proposed use is in harmony with and will not adversely affect the neighborhood if such requirements are met.” Town Law 274-b.

A special use permit gives permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right. Retail Prop. Trust v. Bd. of Zoning Appeals of Town of Hempstead, 98 NY2d 190 [2002].  The significance of this distinction is important.  As the Court of Appeals held, there is fundamental difference between a variance and a special exception permit. See, North Shore Steak House, Inc. v Board of Appeals of the Inc. Village of Thomaston, 30 NY2d 238 [1972].  The Courts have repeatedly held that the inclusion of the permitted use in the ordinance as a special use permit is “tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood.”  Id. 

Although not an entitlement, uses permitted by special permit are generally considered “as-of-right” uses that are subject to a public hearing and conditions for approval. New York courts have also held that because the use is already “permitted,” an applicant requesting a special use permit “need only demonstrate compliance with any legislatively imposed conditions on an otherwise permitted use,” and is only subject to “conditions attached to the use to minimize its impact on the surrounding area” Id.

Importantly, the decision to grant or deny a special use permit must be based on the evidence in the record, and a proposed special use permit cannot be denied based solely on generalized community opposition.  See, Twin County Recycling Corp. v Yevolli, 90 NY2d 1000 [1997].  The decision to deny a special use permit must not only be supported by substantial evidence, but also evidence must be shown that the proposed special use permit would have negative impacts that exceed the impacts associated and anticipated with the use permitted “as-of-right” in the zoning district such as increased traffic for a commercial use.  See, QuickCheck Copr. v Town of Islip 166 AD3d 982 [2d Dept. 2018] (Special permits were required to use the subject property as a convenience market, a minor restaurant, and a gasoline service station.  There was no showing that the proposed use of a gasoline service station would have a greater impact on traffic than would other uses unconditionally permitted.  The alleged increase in traffic volume was an improper ground for the denial of the special permit.  Second Department annulled the Town Board’s determination, and remitted the matter to the Town Board for the issuance of the requested special use permit).

However, requests for special permits are not guaranteed if the applicant cannot, through the imposition of reasonable conditions, meet the special use permit requirements of the local ordinance. See, Tandem Holding Corp. v Bd. of Zoning Appeals of Town of Hempstead, 43 NY2d 801 [1977].

Although special use permits are viewed to be supportive of existing land use in certain zoning districts, it is critical for land use practitioners to develop a strong record that complies with the specific requirements for use(s) permitted by special use permits.

 

When it comes to pre-acquisition environmental due diligence, a properly prepared Phase I ESA is the ounce of prevention that is worth a pound of cure.  Phase I Environmental Site Assessments (“Phase I ESA”) are a routine due diligence requirement of any commercial transaction involving real estate.  A Phase I ESA generally consists of four main components, including a site reconnaissance, interviews with those familiar with the property, review of site-related historic documentation and environmental databases for the subject property and surrounding areas, and preparation of a written report documenting conclusions, and any recommendations for additional investigation.  The primary functions of performing a Phase I ESA are to (1) identify Recognized Environmental Conditions (“RECs”) in the form of a release, likely release or material threat of a future release of hazardous materials or petroleum products at a subject property, and (2) to establish the “innocent purchaser” and other affirmative defenses to environmental liability imposed by the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”).

Understanding the findings and conclusions of the Phase I ESA are necessary to manage and allocate environmental risk imposed by CERCLA.  In the simplest terms, CERCLA liability is harsh.  CERCLA liability is strict (without regard to fault), joint and several (liability for all cleanup costs, even if other parties also contributed to a release) and retroactive (liable for releases prior to enactment of CERCLA).  A purchaser can become liable for a CERCLA cleanup upon acquisition of a property contaminated by hazardous materials.

Late last year, ASTM adopted a new version of the Standard Practice of Environmental Site Assessment: Phase I Environmental Site Assessment Process – ASTM E1527-21 – modifying the standard by which a Phase I ESA is prepared.

The new standard was developed to replace the ASTM E1527-13 standard adopted in 2013 and subsequently codified in CERCLA as satisfying the All Appropriate Inquiry Rule (“AAI Rule”), a prerequisite to establishing certain affirmative defenses to environmental liability under CERCLA, including the contiguous landowner and bonafide prospective purchaser defenses.

Despite ASTM’s adoption of the E1527-21 standard, the E1527-13 Phase I remains the current benchmark to satisfy the AAI rule.  However, EPA is expected to issue a rulemaking to confirm that E1527-21 will also satisfy the AAI rule later this year, before ultimately phasing out the E1527-13 standard.

The update is noteworthy as it modifies the scope of historical reviews for adjoining properties, expands title search standards, revises the definitions of RECs, Controlled RECs and Historic RECs, and addresses emerging compounds like PFOA/PFAS, among several other procedural reporting and definitional clarifications.

Requesting a Phase I ESA prepared in accordance with the applicable ASTM standard should be a check-the-box item on your pre-acquisition diligence list.  However, there are significant legal consequences to adopting a non-compliant Phase I ESA or failing to understand the findings and conclusions.

On January 13, 2022, the Brookhaven Town Board voted unanimously to adopt new legislation that creates the Greater Bellport Overlay District.  The law aims to foster redevelopment in the hamlet of Bellport and encourages the creation of more affordable housing in the area.  The new legislation creates four distinct overlay sub-districts that are designed to implement the Greater Bellport Land Use Plan that was completed in 2014.

According to the law’s legislative intent, the overlay district seeks to revitalize the areas within the sub-districts by encouraging and promoting redevelopment patterns that are civic-oriented, pedestrian-friendly, economically vibrant, environmentally sustainable, and that evoke a unique sense of place.  It is also intended to be a planning tool that will foster the creation of a linear park or esplanade adjacent to the Long Island Railroad tracks, as recommended in the Greater Bellport Land Use Plan.

The four overlay sub-districts are the Bellport Hamlet Center Overlay, the Greater Bellport Opportunity Overlay, the Hagerman Hamlet Center Overlay, and the Bellport Esplanade and Greenway Overlay.

The Bellport Hamlet Center Overlay sub-district is located between Montauk Highway and Atlantic Avenue, south of the Boys and Girls Club, and allows for multi-family residential developments.  This sub-district has a residential base density of 7 units per acre, but offers density bonuses for developments providing extra sanitary capacity, 100% affordable units, construction of a service or use identified as being underserved within the community, use of high-quality, fire-resistant structural materials, green energy technologies and housing for those with special needs.  The maximum residential density in this sub-district is 25 units per acre.

The Greater Bellport Opportunity Overlay sub-district is located north of Montauk Highway.  The regulations in this sub-district aim to bring a greater variety of housing options to Bellport, where single-family residential structures currently dominate.  As recommended by the Greater Bellport Land Use Plan, the sub-district allows for 2, 3 and 4-unit multi-family structures with a special permit from the Planning Board.  This sub-district has a residential base density of 2 units per acre, but allows for density bonuses for developments providing 100% affordability, the dedication of parcels within the Bellport Esplanade and Greenway Overlay sub-district, use of quality, fire-resistant materials and green energy technologies, and housing for those with special needs.  The maximum residential density in this sub-district is 8 units per acre.

Hagerman Hamlet Center Overlay sub-district covers a stretch of Montauk Highway that is home to many automotive-related businesses.  As recommended by the Greater Bellport Land Use Plan, this area is currently zoned J-6 Main Street Business District, which permits first-floor commercial, second-floor office or residential use and third-floor residential use.  This new sub-district now authorizes the Town Board to permit residential uses on the first, second and third floors of a building, provided that at least fifty percent of the first-floor frontage along Montauk Highway is devoted to commercial uses.  Developers in this area may increase the 5 units per acre residential base density by providing the same benefits that allow for increased density in the Bellport Hamlet Center Overlay and Greater Bellport Opportunity Overlay sub-districts, up to a maximum residential density of 20 units per acre.

The Bellport Esplanade and Greenway Overlay sub-district includes a blighted area located between Montauk Highway and the Long Island Railroad tracks.  The lots in this area are small and narrow and were developed without the benefit of landscaping and adequate parking.  This sub-district incentivizes the creation of the esplanade by providing opportunities to increase the residential base density of developments within the Greater Bellport Opportunity Overlay and Hagerman Hamlet Center Overlay sub-districts by dedication of parcels needed to create this future recreational amenity for the residents of Greater Bellport.

All developments located with the Greater Bellport Overlay District are subject to a number of general design regulations.

The maximum permitted height is 50 feet within the Bellport Hamlet Center and Hagerman Hamlet Center Overlays sub-districts, and 2½ stories and 35 feet within the Greater Bellport Opportunity Overlay sub-district.  No more than 30 percent of the residential units can exceed 1,200 square feet, and a minimum of 30 percent of the residential units shall be no larger than 800 square feet.  No residential unit may be less than 400 square feet.

All development proposals must provide civic space and recreational areas, such as squares, private plazas, greens, and public parks, intermixed throughout the development for social activity, recreation, and visual enjoyment.  At least one civic space location must be devoted to the creation of a focal point that advances the arts or the historic or cultural significance of the community.  Bike paths must be provided along roadways that connect the development to the street, and pedestrian walkways must connect all buildings to sidewalks in public streets.

The new legislation is part of the Town’s long-term strategy for revitalizing the Bellport community by removing commercial blight, encouraging new affordable housing projects and providing a new recreational amenity for the residents of Greater Bellport.

In a unanimous decision, the Court of Appeals upheld the Second Department’s decision in Hunters For Deer v Town of Smithtown that the Town may not regulate discharge setbacks for bow and arrow in a manner inconsistent with State law.  In that decision, the Second Department held that long bows could not be defined as firearms and that the State’s hunting laws preempt local ordinances when it comes to the regulation of bows.

As previously discussed here, the lawsuit dealt with state bow hunting regulations that were in conflict with certain discharge regulations enacted by the Town of Smithtown in 2014.

In a terse decision, the Court of Appeals skirted preemption arguments raised below and at oral argument by narrowing the issue, stating “the only question properly before us…is whether Town Law 130(27) authorizes defendant Town of Smithtown to regulate the discharge of ‘bows’ pursuant to its authority to regulate the discharge of ‘firearms’ under that statute.”

Applying principles of statutory construction, the Court found that “while the term ‘firearm’ is undefined in the Town Law, construing it in accordance with its ‘usual and commonly understood meaning’, the term ‘firearm’ does not encompass a ‘bow,’  and we are unpersuaded that the Legislature intended otherwise when it used the term in the Town Law.”

However, in a footnote raising procedural issues, the Court declined to determine whether a municipality has the authority to regulate the discharge of bows under municipal home rule or whether the State’s hunting law preempts such regulations.  The Court went on to state, in the footnote, that Smithtown effectively conceded that the Town Code provision was invalid.

Accordingly, Town Law § 130 (27) does not authorize Smithtown to regulate the discharge of bows as firearms.  Moreover, the Court’s affirmation of the Second Department’s decision suggests that municipalities statewide cannot enforce hunting regulations more restrictive than the State’s.

 

Before adjudication, a court must determine whether a plaintiff has standing. Standing means that the party has a right to access the courts for a particular dispute. A petitioner bears the burden to show an actual injury and that the violated statute was meant to prevent this type of injury. In land use matters specifically, a petitioner “must show that it would suffer direct harm, injury that is in some way different from the public at large” (Thiele v. Town of Southampton Zoning Board of Appeals, internal citations and quotes omitted).

In Thiele, individual petitioners, as well as the Long Island Pine Barrens Society, Inc. and other environmental groups, challenged the Town of Southampton Zoning Board of Appeals’ determination that a private golf course was a permitted accessory use to a proposed residential development. The DLV Quogue respondents want to develop a residential subdivision and a private, 18-hole golf course, and maintain and operate other buildings and structures. In an opinion from November 4, 2021, the Suffolk County Supreme Court held that all of the petitioners lacked standing because they did not show any injuries that were individualized. When considering injury implied by distance to the project site, the court explained that close proximity may be an important consideration, but is never enough on its own. Further, the relevant distance must be measured from the structure or development at issue, not just from property line to property line. Here, the distance of the petitioners’ properties did not help their case. Although there is no specific standard for distance, the closest petitioners had over 700 feet of a forested buffer zone separating their residences from the golf course, and the court did not consider that proximate.

When discussing the requirement that an individual petitioner has an “actual and specific injury that is different in kind of degree from that alleged to be suffered by the general public, and that is not too speculative,” the court specified that groundwater pollution on its own does not suffice. The court cited a 1995 case from the Appellate Division, Second Department, Long Island Pine Barrens Society v. Planning Board of the Town of Brookhaven, which held that “generalized allegations that project will have adverse impact on underlying aquifer” were not enough to establish standing (internal citation omitted). Therefore, the court in Thiele had to follow and expand on the long-standing proposition that a Long Island resident cannot challenge a project to protect the sole source aquifer that spans most of the island unless there is a more particularized accusation. For example, the court in Thiele mentioned that there was no evidence that any of the petitioners have a private or on-site well, implying that if there could be a showing that such a well would be polluted, that could be enough of an individualized injury to establish standing. By extension, this means that there is no general standing to keep Pine Barrens areas undeveloped, even though the sandy soil means that the underlying aquifer is susceptible to pollution. Here, the court also stated that there was no sufficient evidence of harm to the aquifer, and that there was no evidence that the individual petitioners would be “prevented from using or enjoying the Pine Barrens.” Therefore, petitioners should show these kinds of injuries to meet the standing requirements.

Regarding standing for the environmental organizations, the court distinguished cases where petitioners were successful. Unlike in Thiele, in Matter of Long Island Pine Barrens Society, Inc. v. Central Pine Barrens Joint Planning & Policy Commission, an Appellate Division, Second Department case from 2016, petitioners sought to protect a portion of the Pine Barrens that was in the “core preservation area.” Additionally, this area was within the “zone of interests sought to be protected by the Pine Barrens Act of 1993,” so organizational standing was granted (internal citation omitted). In order for organizations to have standing, the most important consideration is that at least one member would have standing to sue. Further, the interest an organization asserts must be relevant to its purpose. Last, neither the claim nor the relief sought must require the involvement of individual members. Therefore, though the Long Island Pine Barrens Society was also a petitioner in Thiele, whether the area is in the “core preservation area” makes the difference because of the protection afforded by the Pine Barrens Act.